Office of Governor and controversies

(MainsGS2:Separation of powers between various organs dispute redressal mechanisms and institutions.)

Context:

• Recently the office of Governor is in frequent news due to the conduct of the Governors of some States which according to experts, undermine constitutional provisions, constitutional morality, and constitutional ethos.

Provision for Governor:

• Article 153 provides a Governor for each State, and by virtue of Article 154, the executive power of the State shall be vested in the Governor (“Shall be exercised by him directly or through officers subordinate to him in accordance with this Constitution”).
• However, Article 154(2)(a) prohibits the Governor from exercising any function “conferred by existing law on any other Authority”.
• Article 163 categorically provides that “there shall be a council of ministers with the Chief Minister at the head to aid and advise the Governor... except in so far as he is by or under this Constitution required to exercise his function or any of them at his discretion”.

Supreme court’s view:

• The Supreme Court, in Shamsher Singh vs State of Punjab and Anr., stated that the Governor exercises “all his powers and functions” by making rules for the convenient transactions of the business of the government of the State in accordance with Article 166 of the Constitution.
• The Court however amplified that “wherever the constitution requires satisfaction of the President or the Governor for the exercise of any power or function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c), 317, 352(1), 356 and 360.
• The satisfaction required by the Constitution is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of the Government”.

Court on discretion:

• The Court in same case went on to hold that “the discretion conferred on the Governor means that as the Constitutional or the formal head of the State, the power is vested in him” and that it is only in the exercise of the power under Article 356 that the Governor will be justified in exercising his discretion even against the aid and advice of his council of ministers as per his discretionary power.
• But in all other matters where the Governor acts in his discretion, he will act in harmony with his Council of Ministers.
• The Constitution does not aim at providing a parallel administration....” The basic philosophy is that in a democracy, the elected Ministers must accept responsibility for every executive act and that the Council of Ministers alone represents a responsible form of government in the States.

Controversy on pleasure doctrine:

• Recently the office of the Kerala Governor evoked nationwide attention for his remark“... the statements of individual Ministers that lower the dignity of the office of the Governor can invite action including withdrawal of pleasure”.
• The foundational theory of India’s constitutional democracy is that the function of the appointed Governor is always subject to the policies of the elected government, and not vice-versa.
• Scholar Subhash C. Kashyap has put it pithily, “The words ‘during pleasure’ were, always understood to mean that the ‘pleasure’ should not continue when the Ministry had lost the confidence of the majority; and the moment the Ministry lost the confidence of the majority, the Governor would use his ‘pleasure’ in dismissing it”.
• Therefore, the Article implies that the Governor is only a titular head of the State and that if the Cabinet has majority, the Governor cannot act against the Cabinet.
• While debating Article 143 (now Article 163), Dr. B.R. Ambedkar amply clarified the position by saying, “The clause is a very limited clause. It says: ‘except in so far as he is by or under this Constitution’. 
• Therefore, Article 143 will have to be read in conjunction with such other articles which specifically reserve the power to the Governor. It is not a general clause giving the Governor power to disregard the advice of his ministers in any matter in which he finds he ought to disregard.”

Conclusion: 

• T.T. Krishnamachari, the member of the drafting Committee said, “... If my honorable friend understands that the Governor cannot act on his own, he can only act on the advice of the Ministry, then the whole picture will fall clearly in its proper place before him…”